Iowa, McClain's An. C. (1888) 56.

Cal. Pol. C. 4468; Nevada (1885) ? 3021; Mont. Pol. C. 5152.

GENERALLY. Section 17 of the organic act of Utah territory extends the common law over the territory of Utah. People v. Green, 1 U. 11.

Although the common law has not been adopted in this territory by any statute, it should be regarded as prevailing here, so far as it is not incompatible with our situation and government. Thomas v. U. P. Ry. Co., 1 U. 232.

The people of Utah have tacitly agreed upon maxims and principles of the common law, suited to their condition and consistent with the constitution and laws. First Nat. Bank v. Kinner, 1 U. 100. The common law writ of elegit is not in force in Utah. A judgment recovered by the sovereign for a penalty in a criminal proceeding creates no lien on the judgment debtor's land. Thompson v. Avery, 11 U. 214; 39 P. 829.

ACCOUNT STATED. If no objection is made within a reasonable time to an account stated, assent thereto may be presumed. Godbe v. Young, 1 U. 55. An action upon an account stated is not founded upon the original items of the account, but upon the balance ascertained by the mutual consent of the parties, and is itself in the nature of a new promise. Robbins v. Woodhull, 1 U. 317.

Where the parties expressly or impliedly agree upon a certain sum as the balance due, it becomes an account stated. Benites v. Hampton, 3 U. 369; 3 P. 206. See Hampton v. Benites, 123 U. S. 519. Where an account is presented for payment to the debtor, who, within a reasonable time, makes no objection thereto, the presumption is that he was satisfied with the account, and the same becomes an account stated. Id.

Where an account has been stated and paid in full, it cannot be avoided for mistakes in its items except by action to surcharge and falsify the account. Roach v. Gilmer, 3 U. 389; 4 P. 221.

ACCRETION. The patentee of a fractional subdivision of public land bordering on a navigable lake which has been meandered in the government surveys, takes title to all lands below the meander line formed by accretions. Knudsen v. Omanson, 10 U. 124; 37 P. 250; following Poynter v. Chipman, 8 U. 442; 32 P. 690.

An inland lake thirty miles long and twelve miles wide is not navigable within the meaning of the common law. According to the common law only those waters are navigable in which the tide ebbs and flows. Poynter v. Chipman, 8 U. 442; 32 P. 690.

A grantee under a patent becomes the riparian owner upon a navigable lake, and acquires a vested right to all the land which may be added to the lots patented by accretion or reliction, with which

right the government could not interfere; and the land department in withdrawing such lands from settlement and sale acted without jurisdiction. Knudsen v. Omanson, 10 U. 124; 37 P. 250.

ALTERATION OF INSTRUMENTS. The interlineation of the words "all terms and conditions included in above approved, read, and agreed to," into a signed written contract, is a material alteration of the same. Am. Pub. Co. v. Fisher, 10 U. 147; 37 P. 259.

Where, after the words "interest payable" the word "semi-annually" was inserted in a note; held, that the instrument would not thereby be annulled, where the alteration was innocently made for the purpose of making the instrument conform to the agreement of the parties, and it appears that no one was injured by such alteration. McClure v. Little, U.; 49 P. 298.

-

ASSIGNMENT. Where an assignment is made to B. in behalf of himself and others and is afterward delivered to one of the other parties under circumstances showing that B. must have known and consented thereto, such delivery is good as to B. Wilson v. Kiesel, 9 U. 397; 35 P. 488.

C. and S. held a contract for grading a railroad and sub-contracted a portion thereof to A.; A. subcontracted a part of his sub-contract to M. at the same price he was to receive for the same and gave M. an order on C. and S., directing them to pay M. for grading between certain points less a certain book account, the amount of which was not then ascertained, but not stating the amount to be paid. C. was present and said that it would be all right; held, that the order was sufficiently definite and was an assignment of a particular indebtedness. McBride v. Collins, 4 U. 181; 7 P. 647.

BAILMENT. Innkeepers are responsible for gross negligence only in the care of baggage left by a boarder ordered to leave for not paying his board. Lawrence v. Howard, 1 U. 142. Under such circumstances boarder contributes to loss. Id.

A bailee of personal property cannot convey the property or subject it to execution for his own debts until the condition on which the contract to sell was made has been performed. Harkness v. Russell, 118 U. S. 663. Affirming Russell v. Harkness, 4 U. 197; 7 P. 865.

BANKS AND BANKING. See annotations under 'Banking Corporations and Banks," 22 374-391.

For case in which a bank was held liable for delay and neglect in collecting a draft, see Mound City P. & C. Co. v. Com. Nat. Bank of Ogden, 4 U. 353; 9 P. 709.

The delivery of a check by the plaintiff to an agent whose character was not known to be bad, was not such carelessness on the part of the plaintiff as

to exempt the bank from its liability to him for the amount paid out upon a forged indorsement by the agent of the payee's name. Brixen v. Deseret Nat. Bank, 5 U. 504; 18 P. 43.

Though the drawer of a check, upon discovering that it has been cashed on a forged indorsement of the payee's signature, is guilty of negligence in not immediately tendering back the check, the bank is not thereby exempt from its liability to the drawer for the sum thus paid out, unless it can show some actual damage caused thereby. Id.

Where plaintiff, without negligence, delivered a check payable to a third party, to an agent who had negotiated the loan for which the check was given, he is not bound, when the check comes back from the bank in the ordinary course of business, to investigate the genuineness of the indorsement, not being familiar with the payee's signature. Id. A board of education contracted with C. for a schoolhouse. Payments were made by C. to H. under a sub-contract. Finally, H. assigned his contract to the bank. The bank claimed the last deposit made by H., and refused to pay checks drawn against it by H.; held, that no relief could be had against the bank by holders of such checks. Myers v. Adams, 9 U. 8; 33 P. 222.

The drawer of a check who forbade its payment because indorsed by the teller, who had authority to sign the cashier's name, instead of the cashier to whose order it was drawn, cannot recover damages in consequence of the check being protested. Hadra v. Utah Nat. Bank, 9 U. 412; 35 P. 508.

A bank may hold security for a reasonable time, but not for the use and benefit of the debtor, and if it appear that the bank is so doing, the property should be placed in the hands of a receiver for the payment of the debtor's debts. Henderson v. Adams, U. —; 48 P. 398.

Security given to a bank to secure an indebtedness after a judgment had been obtained against a debtor by another, is not fraudulent though the collection of the judgment might thus be delayed. Id. Where the manager of a bank substituted the note of a corporation, of which he was president, secured by collateral, for a prior note of such corporation, guaranteed by himself and another, without the consent of the directors, and in the exercise of his usual authority; held, that the board would be estopped from denying the authority of the manager. Armstrong v. Cache Valley Land & Canal Co., 14 U. 450; 48 P. 690.

BONDS. The sureties on a distiller's bond cannot complain that they had no notice of the increased capacity of the distillery; notice to the principal is sufficient. U. S. v. Woodman, 1 U. 265.

The conditions in a bond are to be construed in favor of the obligors, and the liability of sureties will not be extended beyond the strict letter of their contract. Victor Sewing M. Co. v. Crockwell, 2 U. 557. See same case, 3 U. 152; 1 P. 470; and 112 U. S. 676, 688. A surety on a bond for the faithful performance of a contract requiring an agent to turn over to his principal all the notes received for the sale of the property of his principal, and indorse the same, is holden for the payment of such notes. Victor Sewing M. Co. v. Crockwell, 3 U. 152, 1 P. 470, overruling Victor Sewing M. Co. v. Crockwell, 2 U. 557. Affirmed, 112 U. S. 676, and 112 U. S. 688. Under a certain bond set forth in decision; held, that the condition extended to the payments of all notes made or indorsed by the principal and transferred to the obligor; held also, that so far as the surety was concerned, his waiver of notice applied to a default by his principal. Id.

Where a bond is given for a certain sum to defendant, to be void if an obligor should convey certain land to the obligee, otherwise to remain in force, and the value of the land is less than the sum named in the bond, such sum is not liquidated damages but a penalty. McIntosh v. Johnson, 8 U. 359; 31 P. 450.

Where a bond for a deed provided that it should

be void if the vendor conveyed according to contract, and the contract provided for a forfeiture for nonpayment of any instalment of purchase price at the time stipulated, and the vendor waived a forfeiture and permitted a payment after the time; held, that the surety was released. Coughran v. Bigelow, 9 U. 260; 34 P. 51. Affirmed, 164 U. S. 301.

Where sureties and the agent of the principal agreed that the latter should sign a bond before delivery, but the same was delivered before such signature, such agreement cannot be set up against the obligee as a defense, where the latter had no knowledge of said agreement. Butterfield v. Mountain Ice and Cold Storage Co., 11 U. 194; 39 P. 824.

CONTRACTS, ETC. See "Fraud," "Real Estate," and Specific Performance," hereunder; the title Mines and Mining," ?? 1495–1538.

When a contract is made with individuals in behalf of a small community by a committee purporting to act for them, and when such action has been ratified by the community in a public meeting, the contract becomes binding on such community. Lehi Irrigation Co. v. Moyle, 4 U. 327; 9 P. 867.

Where a principal and sureties execute a bond for the faithful performance by the principal of a written contract with the obligee of the bond, in a suit for breach of the conditions of the bond, the bond and contract must be construed together, and both constitute but one agreement between the parties. Victor Sewing M. Co. v. Crockwell, 3 U. 152; 1 P. 470. Affirmed, 112 U. S. 676, 688.

Where a bond is given for the performance of a contemporaneous contract made a part of such bond, the stipulations of the contract will control repugnant provisions in the bond. Coughran v. Bigelow, 9 U. 260; 34 P. 51. Affirmed, 164 Ü. S. 301.

A verbal agreement is of as high a legal degree as one in writing, and either one may be varied or abrogated by subsequent agreement, parol or written. West v. Norwich Ins. Co., 10 U. 442; 37 P. 685.

Local customs cannot change the law of negligence, but when reasonable, uninterrupted, and uniform, and not contrary to public policy, they may affect the interpretation of contracts made in their locality. Jenkins v. Hooper Irr. Co., 13 U. 126; 44 P. 829.

Where purchase money is the consideration of one instrument, it will continue to be the consideration of another instrument executed in substitution of the former one, unless superior equities intervene. Featherstone v. Emerson, 14 U. 12; 45 P. 713.

An allegation that plaintiff and defendant, being tenants in common of a certain canal, agreed in writing to keep the same in repair, that each should pay its share of the expense, is supported by proof of the writing of a letter from plaintiff to defendant, suggesting the arrangement and an answer thereto containing language which, to the court and jury, showed an assent thereto, although containing additional suggestions as to the work. Société Des Mines v. Old Jordan M. & M. Co., 9 U. 483. Affirmed, 164 U. S. 261.

Where the constituent members of a lumber dealers' association gave their individual notes for lumber bought, two members of such association who, on account of having received less material than was proportionate, had been paid certain cash balances by the association, were held not liable to the assignee of the unpaid notes of a fourth member of the association, although the latter had received less than his proportion of such material. Mader v. Taylor R. A. Co., — U. —; 49 P. 255.

"Original cost" in contract was intended to mean actual cost, where E. agreed to deliver to C. mining stock to the value of five thousand dollars at its original cost, and not to include advances or loans made to the corporation by E., which have been repaid. Eagan v. Clasbey, 5 U. 154; 13 P. 430. Afirmed, 137 U. S. 654.

Guarantors of the performance by a partner

ship of a contract for the sale of live stock are released from liability by their ignorance of the fact that the contract was negotiated by a common member of both the buying and the selling partnerships, since the risk of the guarantors is increased by intrusting the performance of a contract to one whose interest is equally with both parties. Jungk v. Reed, 9 U. 49; 33 P. 236.

Where, by the terms of a contract, one party is bound to do a certain thing and the other can perform his part at his own option, the contract is not mutual or binding on the other party. Davis v. Flagstaff Mining Co., 2 U. 74.

A party to a contract, upon the failure of the other party to perform a condition precedent to his further performance, may rescind and abandon the contract, and recover the amount already due for work under the contract. Bennett v. Shaughnessy, 6 U. 273; 22 P. 156.

A suggestion to make repairs on a canal by one co-tenant to another, and accepted by the latter, may be terminated by either party by notice to the other. Société Des Mines v. Old Jordan M. & M. Co., 9 U. 483. Affirmed, 164 U. S. 261.

The rule that equity will not interfere to cancel a contract made through mistake of law, applies to a mistake as to the general law, not to a case where a party is mistaken as to the effect of existing circumstances. Toland v. Corey, 6 U. 392; 24 P. 190.

It is a good defense to an action for damages for breach of contract that it was without consideration, was obtained by fraudulent representations, and had been rescinded by mutual consent before the breach occurred. Ternes v. Dunn, 7 U. 497; 27 P. 692.

CONTRIBUTION.

Where a tort feasor pays a judgment rendered against himself and another, he may have contribution from the joint tort feasor, where the latter directs the former as his agent to obtain possession by legal process of certain premises upon a claim which is invalid, or in a court which he believes to have, but which in fact does not have, jurisdiction. Culmer v. Wilson, 13 U. 129; 44 P. 833.

CONVERSION. In an action for conversion of stock, it is no defense that some other party took the property in the first instance. Kuhn v. McAllister, 1 U. 273. Affirmed, 96 U. S. 87.

Shares of stock in an incorporated company are recognized as a subject of conversion, and suit can be maintained therefor and a recovery of the value had. Id. Where collateral notes are sold before the principal note became due; held, to be conversion. Walley v. Deseret Nat. Bank, 14 U. 305; 47 P. 147.

CUSTOMS. To establish the validity of a custom of trade on which a party relies, in an action for personal injury, the usage must have extended such a length of time as to become generally known, and must be shown to be reasonable, uniform, certain, and not contrary to law, and it is error for a court to charge a jury that the custom or usage must be "so certain as the business to which the rule applies will permit, there being no comparative degrees as to the certainty of a custom.' Nelson v. Southern Pacific Co., U.; 49 P. 644.

Local customs cannot change the law of negligence, but when reasonable, uninterrupted, and uniform, and not contrary to public policy, they may affect the interpretation of contracts made in their locality. Jenkins v. Hooper Irr. Co., 13 U. 126; 44 P. 829.

It is not error for the court to instruct the jur to give interest as damages in cases of destructio of property, nor is it error for the jury to give interest eo nomine as such damages. Rhemke v. Clinton, 2 U. 230. Where a vendor enters into an agreement to convey real estate which he knows at the time of the agreement that he does not own and has no right to sell or convey, the measure of damages for failure to convey is the difference between the contract price and the price at the time of the purchase, together with payments already made. Dunshee v. Geoghegan, 7 U. 113; 25 P. 731. In an action for a personal injury causing death, it is error to instruct the jury that the plaintiff might recover for the mental pain and suffering caused to the mother, who was the heir, by the death of the deceased. Webb v. D. & R. G. W. Ry. Co., 7 U. 17; 24 P. 616.

In an action for killing a child, instructions that the jury might take into account "the comfort that the parent might take with the child in rearing it and bringing it up"; held, in the absence of any appearance of excessiveness in the verdict, not error. Hyde v. U. P. Ry. Co., 7 U. 356; 26 P. 979. Instructions that the widow of the deceased and his daughter were entitled to recover for the damages sustained by reason of the death of the decedent, and for being deprived of the support, care, companionship, assistance and protection of the deceased, but that the jury was to allow nothing for the mental suffering of the widow and child or anything as solace for their feelings, is correct. Wells v. D. & R. G. W. Ry. Co., 7 U. 482; 27 P. 688.

Jury may consider number and ages of deceased's family. Pool v. Sou. Pac. Co., 7 U. 303; 26 P. 654. And benefits from association, comfort, and pleasures they have lost. Chilton v. U. P. Ry. Co., 8 U. 47; 29 P. 963.

In an action for death by negligence, the law allows nothing more than pecuniary loss, which should not be measured by the wealth or poverty of the recipient or giver, but by his earnings, care, health, contributions made, or any reasonable expectation of being made to the widow and children, judged from all the circumstances of the case, to be just, and measured by a pecuniary standard. English v. Sou. Pac. Co., 13 U. 407; 45 P. 47.

Evidence of the good reputation of the deceased as a railroad man was inadmissible as bearing on the question of contributory negligence, but admissible upon the question of damages and loss to his heirs. Wells v. D. & R. G. W. Ry. Co., 7 U. 482;

27 P. 688.

The measure of damages for breach of a contract for the performance of work is the profits which have been realized upon the contract, and not both the profits and the expenses of preparing for the work. Hawley v. Corey, 9 U. 175; 33 P. 695.

In a suit for damages for breach of a contract to keep flooded certain ice ponds used for putting up ice, the measure of damages will be the value of the ice that might have been put up with reasonable diligence, less the cost. Farr v. Griffith, 9 U. 416; 35 P. 506.

A charge examined and held to be erroneous and misleading in, first, that it did not announce the proper rule to determine the measure of damages, as plaintiff did not seek punitive damages or rely upon express malice, and second, that the charge that "the law recognizes the press as a potent factor in society for good," might easily mislead the jury. Fenstermaker v. Tribune Publishing Co., 12 U. 439; 43 P. 112.

The proper measure of damages in a case where the character and location of land and its rental value had been misrepresented to a purchaser who had not inspected the land, is the difference between the value as it would have been if as represented and its actual value. Hecht v. Metzler, 14 U. 408; 48 P. 37.

Where the broker sells stock of his principal

without the directions of the latter, and is thereby liable for conversion, the measure of damages is the highest intermediate value of the stock between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the stock. Galigher v. Jones, 129 U. S. 193; reversing 3 U. 54. Where a broker sold stock of his principal of his own motion and without notice to the principal; held, that he was only liable for any advance on the stock that took place up to the time when the principal received notice of the sale, and had reasonable time to replace it by the purchase of new stock; but where the principal expresses no dissatisfaction with such sale at the time, he is entitled to no damages. Id.

If a party after obtaining judgment for damages remits part thereof, he cannot afterwards bring an action to recover such sum. Hodson v. U. P. Ry. Co., 14 U. 381; 47 P. 859.

When a person stops at a railroad station to which he came as a passenger, his relation as such ceases, and the company is not liable for a malicious assault upon him committed on the company's grounds outside of its station by its agents; but where, on the occasion of a second assault a short time afterwards, by employees of the company, during which the station agent was present and failed to exercise his authority for the protection of the person assaulted, the company will be liable. Krantz v. R. G. W. Ry. Co., 12 U. 104; 41 P. 717.

Where defendant removed, without notice to plaintiff, the body of plaintiff's child from a cemetery lot which defendant sold and deeded to plaintiff, but which defendant had previously sold but had not deeded to a third person; held, that punitive damages were properly allowed. Thirkfield v. Mountain View Cemetery Ass'n, 12 U. 76; 41 P. 564.

Where the damages cannot be estimated from the evidence, only nominal damages can be given. Rohwer v. Chadwick, 7 U. 385; 26 P. 1116.

Where an action for condemnation is brought against a trustee, and afterwards the grantors in the deed of trust, the real owners of the land, voluntarily appear; held, that damages shall be deemed to have accrued at the time of entering appearance and not at the date of the summons. O. S. L. & U. N. Ry. Co. v. Mitchell, 7 U. 505; 27 P. 693.

EASEMENTS. The granting of a right to quarry rock with a right of way, is not a grant of possession, except for the sole purpose of enjoying the license and easement, and the grantee cannot authorize a railroad to be constructed over the land, even though the major part of its business is to transport rock quarried under the license. Snell v. Wasatch & J. V. Ry. Co., 3 U. 192; 2 P. 193.

One who uses the land of another merely as a means of exit to a road cannot claim title thereto under the statute of limitations, which provides a term of seven years for perfecting a title by adverse possession. Harkness v. Woodmansee, 7 U. 227; 26 P. 291.

Where a person opens a way for the use of his own premises, and another person uses it without damage, the presumption is that the latter use was permissive. Id.

Under the circumstances of this case an easement in land could only be acquired by the consent or acquiescence of the owner. McGregor v. Silver King Mining Co., 14 U. 47; 45 P. 1091.

EQUITY. See "Estoppel," "Fraud,” “Specific Performance," etc., hereunder.

Equity follows the law. Ogden Paint & Oil Co. v. Child, 10 U. 475; 37 P. 734.

Conscience, reasonable belief, diligence, and good faith, and not neglect and laches, call forth the powers of a court of equity. Bailey v. Stevens, 11 U. 175; 39 P. 828.

One who invokes the equity jurisdiction of the court, cannot urge on appeal that his complaint

should have been dismissed because of adequacy of remedy at law. Perego v. Dodge, 163 U. S. 160. Affirming 9 U. 3; 33 P. 221.

When mistake or fraud has intervened to change legal rights of parties, equity will afford relief when it can be done without interfering with any new rights or doing injustice. Johnson v. Tootle, 14 U. 482; 47 P. 1033.

Mere lapse of time when the parties remain in the same relative position, and the delay has worked no serious wrong to the adverse party, so that justice can still be done, although an important ingredient in the law of laches, will not operate as a bar in equity. Hamilton v. Dooly, — U. —; 49 P. 769.

A suit against an executor to establish a trust was barred by laches where plaintiff delayed making the demand for more than eleven years, and until the testator's mind had become impaired, though he had known for eight years that the testator had repudiated the claim. Whitney v. Fox, 166 U. S. 637. Affirming 8 U. 380; 32 P. 48. ESTOPPEL. See citations under "Estoppel,'

notes to 3479.

The grantee of owner conveyed north half of certain premises and alleyway to defendants, and owner conveyed south half and alleyway to plaintiff. The parties entered into possession and such boundaries were acquiesced in by adjoining proprietors for fifteen years; held, that plaintiff was not estopped from showing true boundaries as against defendant. Switzgable v. Worseldine, 5 U. 315; 5 P. 144.

Where an insured requested the agent of a company to indorse on the policy permission for additional insurance, which he failed to do, the company is estopped to set up a provision against additional insurance, though the provision required such permission to be indorsed on the policy, and contained a clause restricting the agent's power to waive any of the provisions of the policy. West v. Norwich Ins. Co., 10 U. 442; 37 P. 685.

Where an agent has knowledge, at the time a policy is issued, that the property is mortgaged, and that it is also on leased ground, the company cannot set up as a defense provisions avoiding the policy for such reasons. Id.

It seems that the conduct of one member of a firm not a party to the suit about a matter not within the general scope of the firm business, sufficient to create an estoppel against him, operates to bind another member of the firm sought to be charged, who had no knowledge of the acts creating an estoppel. Young v. Schroeder, 10 U. 155; 37 P. 252; same case, 161 U. S. 334.

A trustee is not estopped by his covenant of seisin and warranty in a trust deed from testifying in an action by the cestui que trust to establish the trust as against the grantee, that he notified the grantee of the interest of the cestui que trust prior to the execution of the trust deed. Rogers v. Donnellan, 11 U. 108; 39 P. 494.

Where one of two innocent persons is to suffer by the acts of a third person, he who has enabled the third person to occasion the loss must suffer by it. Butterfield v. Mountain Ice and Cold Storage Co., 11 U. 194; 39 P. 824.

To constitute equitable estoppel, the facts must be such as to make a cause of action for deceit in favor of the party pleading the estoppel. B. Y. Trust Co. v. Wagener, 12 U. 1; 40 P. 764. See same case on rehearing, 13 U. 236; 44 P. 1030. To constitute equitable estoppel, it is necessary that there should have been, first, a false representation of a material fact; second, such representation must have been knowingly made; third, the party pleading the estoppel must have been ignorant of the facts; fourth, the representation must have been made with the intention that it should have been acted upon; fifth, the other party must have been misled to his injury. Id.

FALSE IMPRISONMENT. A warrant of arrest, being regular upon its face and the court having jurisdiction to issue it, the officer is not liable in an action for false imprisonment without proof of express malice; if he acts in good faith, he is only liable for compensatory damages in any event, for injuries against law. Clinton v. Nelson, U. 284. Where a writ of restitution which was void because the court acted without jurisdiction, was resisted, and the person resisting was thereafter arrested upon a sworn complaint of the constable upon a warrant issued by a magistrate having jurisdiction of the offense; held, that neither the constable nor the justice were liable for false imprisonment. Marks v. Sullivan, 9 U. 12; 33 P. 224. Justice did not render himself liable for false imprisorament in issuing warrant if evidence had a tendency to produce in his mind a belief of the probable guilt of accused, and it did produce that belief, though further evidence would have been more satisfactory; he is acting as a judicial officer. Id. A constable executing a warrant, legal on its face, is not liable to the person arrested for false imprisonment. Id.

The gist of false imprisonment is the illegal and forcible invasion of an individual right to liberty. Johnson v. Tootle, 14 U. 482; 47 P. 1033.

FIXTURES. Under section 2009, C. L. 1888, exempting from taxation mining claims and prodncts of mines; held, that an engine and boiler built into a brick foundation, and firmly affixed by bolts leaded down and used in underground workings of a mine, are part of a mining claim. Mammoth Mining Co. v. Juab County, 10 U. 232; 37 P. 348.

A sub-tenant has no authority to bind a tenant by any agreement to pass title to the fixtures to the lessor, the tenant not assenting to such agreement. Podlech v. Phelan, 13 U. 333; 44 P. 838.

A partition not fastened to the plastering, placed for convenience of business and used as a screen, is subject to removal. Id.

FRAUD. Where defendants procured to be inserted in a deed a wrong description by retaining a deed proffered by plaintiffs, and proffering a deed prepared by themselves, and by representing that the descriptions in the two deeds were the same; held, that it was plaintiffs' fault if they were imposed upon, and that there was no fraud where the complaint alleged no fiduciary relation nor any mutual mistake. Rushton v. Hallett, 8 U. 277; 30 P. 1014.

One whose mind has become enfeebled, and who has been induced to exchange land for stock in an insolvent corporation, by false representations by the owner of the stock, who was the general manager of the corporation, is entitled to a rescission of the contract. De Frees v. Carr, 8 U. 488; 33 P. 217.

An assignment of property will be set aside where, at the time it was executed, the assignor was in a dying condition, bereft of sight and speech, and where the consideration therefor was less than one-twelfth of the value of the property assigned. Turner v. Utah Title Ins. and Trust Co., 10 U. 61; 37 P. 91.

Fraud cannot be presumed from mere suspicious circumstances; but must be proved. Ensign v. Fisher, U.; 47 P. 950.

An estimate of the value of property, or an expres-ion of opinion, even if false, does not ordinarily constitute actionable fraud; but a wilful misrepresentation by a vendor affirming that rental from property was greater than it was, is actionable fraud when relied upon by vendee; so is a wilful and injurious misrepresentation as to the character and location of land, when relied upon by the purchaser without inspection of the premises. Hecht v. Metzler, 14 U. 408; 48 P. 37.

Equity will grant relief for the transfer of a valuable property that has been fraudulently extorted for a grossly inadequate consideration from a person while in such a state of intoxication as to render

fer of corporate property was dated the 28th day of February, 1887, but no delivery took place prior to the 3d day of March, 1887, and the act dissolving the corporation passed both houses of congress prior to the 28th day of February, and went into effect on the 3d day of March, 1887; held, that the transfer under section 1017, C. L. 1876, was in fraud of the rights of the government and void as to the receiver. United States v. The Church, 5 U. 538; 18 P. 35.

Where a debtor in good faith mortgages his property in an amount not excessive, to secure an accommodation indorser, upon his note, he is not guilty of fraudulent disposition of his property. Godbe-Pitts Drug Co. v. Allen, 8 U. 117; 29 P. 881. A deed to children for a nominal consideration, where the debtor is rendered insolvent thereby, is void; and is constructively fraudulent as to creditors without proof of actual fraud, though the grantee had no knowledge of the fraud. Ogden State Bank v. Barker, 12 U. 13; 40 P. 765.

The recital in a debtor's deed to his children that it was made for a nominal consideration, is conclusive against him in an action by creditors to set aside the deed for fraud. Id.

Where a debtor transferred real estate to a trustee for the purpose of forming a corporation, the stock of which was to be assigned to a bank to secure debtor's obligations to said bank, there being a previously existing judgment against such debtor, the security thus given is not fraudulent, even though the collection of the judgment is thereby delayed, as the corporate stock can be reached on execution as readily as the land transferred might have been. Henderson v. Adams, U.; 48 P. 398.

GUARANTY. See "Suretyship and Guaranty,"

? 1568.

The treasurer of a corporation wrote a letter accepting for the corporation plaintiff's offer to sell certain property at a specified price, in which letter he said, "I will guarantee you the money between thirty and forty days," and signed the letter with his name as treasurer; held, that this language was only an assurance that the company would pay, and not a personal guaranty. Riter v. Sun Foundry & Machine Co., 10 U. 140; 37 P. 257.

INSURANCE. Where an insurance policy provided that an appraisal of the loss should be made by two disinterested and competent persons, and the appraisers, acting under the instructions of the defendant's agent, assessed damages only to the goods visible and upon the tables, without allowing anything for missing pieces or sets broken; held, in an action upon the policy, that the plaintiff was not concluded by the award. Hong Sling v. Norwich Assurance Co., 7 U. 441; 27 P. 170.

Where an insurance company repudiates a policy and refuses to recognize plaintiff's claim on other and distinct grounds, it thereby waives proof of loss (Daniher v. A. O. U. W., 10 U. 110; 37 P. 245, followed). West v. Norwich Ins. Co., 10 U. 442; 37 P. 685. A policy of insurance provided that in case of loss insurer should have sixty days after proof of loss within which to pay claim. Claim was presented, and payment refused; suit was commenced within sixty days; held, that plaintiff was not required to await the expiration of the sixty days before bringing suit. Walker Bros. v. Continental Insurance Co., 2 U. 331.

Where an agent of a fire insurance company, who is also agent for another company, has issued a